Jordan Eskridge v. Pacific Cycle, Inc. , 556 F. App'x 182 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1259
JORDAN ESKRIDGE,
Plaintiff - Appellant,
v.
PACIFIC CYCLE, INC., a foreign corporation; WAL−MART STORES
EAST, LP,
Defendants – Appellees,
and
WAL−MART STORES, INC., a foreign corporation; KUN TENG
INDUSTRY CO., LTD, a foreign corporation,
Defendants.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
District Judge. (2:11-cv-00615)
Argued: December 10, 2013 Decided: January 17, 2014
Before TRAXLER, Chief Judge, and WILKINSON and DAVIS, Circuit
Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
ARGUED: Christopher Brinkley, MASTERS LAW FIRM, LC, Charleston,
West Virginia, for Appellant. Tanya Annette Hunt Handley,
MACCORKLE LAVENDER PLLC, Charleston, West Virginia, for
Appellees. ON BRIEF: John L. MacCorkle, Charleston, West
Virginia, Heather M. Noel, MACCORKLE LAVENDER PLLC, Morgantown,
West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Jordan Eskridge appeals a district court order granting
summary judgment against him in his products liability action.
We affirm in part, reverse in part, and remand for trial.
I.
This case arises out of injuries that Eskridge suffered
while riding his Mongoose XR100 bicycle when he was 13 years
old. Eskridge’s father bought the bicycle, which was equipped
with a Quando quick-release hub, at a Wal-Mart in Beckley, West
Virginia. The bicycle was preassembled and it came with an
owner’s manual. Eskridge enjoyed the bike for more than three
years without incident, but then one day, as he was riding over
a speed bump, he crashed and suffered very serious injuries.
Eskridge eventually filed suit in West Virginia state
court, naming as defendants – as is relevant here – Pacific
Cycle, Inc., which designed the bike, and Wal-Mart Stores, Inc.,
which sold it to Eskridge’s father. 1 He alleged that as he rode
over the speed bump on the day he was injured, the bicycle’s
front wheel separated from the front forks and when the bicycle
came down the front wheel was jammed into the forks, stopping
the bicycle suddenly and causing him to strike the handlebars
1
Wal-Mart Stores East, LP, was later substituted for Wal-
Mart Stores, Inc. We will refer to Pacific Cycle, Inc., and
Wal-Mart Stores East, LP, as “Defendants.”
3
and fall to the ground. Eskridge asserted causes of action for
strict liability, negligence, and breach of warranty, and he
sought compensatory and punitive damages. He claimed that “[a]s
a result of deficiencies in design, testing, assembly,
inspection, and provision with instructions and warnings, the
Mongoose XR100, and/or its Quando quick-release hub, were
defective” in several respects. J.A. 25.
Defendants later removed the action to federal district
court and eventually moved for summary judgment. Defendants
maintained that Eskridge could not prove that the quick-release
hub in the Mongoose XR100 (“Mongoose”) was defectively designed
because Eskridge’s expert, James Green, conceded that, if used
properly, the quick release is “one of the best clamping
mechanisms in the world.” J.A. 220. The Defendants also
maintained that no failure-to-warn or inadequate-labeling theory
could succeed because neither Green nor Eskridge offered
evidence of the “industry standard, exemplar owner’s manuals or
any other document or standard” and because Green offered no
basis for believing that providing warnings and instructions in
the owner’s manual was an inadequate method by which to
communicate the applicable warning to the user. J.A. 62.
Eskridge then filed a response detailing his theories,
based on Green’s report and testimony, that the Mongoose was
defective in several different respects. Understanding Green’s
4
opinions requires a little background regarding the quick-
release mechanism.
A quick-release mechanism allows a bicycle’s front wheel to
be removed quickly and without tools. Although originally
designed for racing bicycles, the device also can benefit the
casual rider who is removing the wheel for any reason, such as
to transport the bicycle, lock it up in public, or change a flat
tire. Consequently, even most bicycles sold for casual use are
equipped with a quick-release hub.
On a bicycle equipped with such a device, the front “fork
blades,” which are the arms of the bicycle holding the wheel,
each have a u-shaped “dropout” on their end. And, the axle of
the front wheel has a cylindrical hollow space running through
it. The quick-release mechanism is a rod that is threaded on
one end and that has a lever-operated cam assembly on the other.
With such a system, the wheel is connected to the bicycle when
the rod is placed through the hollow part of the front wheel
axle so that it protrudes a little bit on either end. The wheel
is then situated between the fork blades so that both ends of
the rod fit in the dropouts. To secure the wheel, a nut on one
end of the rod is tightened and the lever on the other side is
pressed inward. The lever tightens the rod so that the
mechanism is pushing on each dropout from the outside. This
5
pressure keeps the wheel attached while the bicycle is being
ridden.
Green inspected Eskridge’s bicycle and concluded that it
was defective in three ways. First, the fork holding the front
wheel was defective because the fork blades’ ends were open
rather than closed. Green opined that open-fork systems created
the reasonably foreseeable risk that a user would install his
quick-release hub improperly, which would cause the hub to
separate from the fork during use. Green noted that even for
intelligent users who are attempting to follow perfect
instructions, fastening a quick release is a “subtle” process
that is often done incorrectly. J.A. 208. Green also opined
that there was no benefit to a casual rider of an open-fork
system.
Second, Green concluded that, the inherent problems with
the open-fork system aside, the design of the Mongoose’s open-
fork system differed from that of the vast majority of open-fork
designs in the industry, such that it was a far trickier process
to install the hub correctly on the Mongoose. The problem as
Green described it is that protuberances at the end of each
dropout in an open-fork mechanism generally serve to keep the
wheel from separating from the bicycle in the event that the hub
has not been installed correctly. However, with the Mongoose,
“you can put the wheel on” and yet not “get it over the
6
protuberances completely.” J.A. 210. “[I]f you don’t have it
seated just perfectly, [so] that it’s off just a little bit on
either side so that it’s not completely clearing the
protuberance when you fasten it, it comes right out of there”
during use. J.A. 210. Green testified that his investigation
indicated that that most likely is exactly what happened to
Eskridge to cause the accident. Green explained that, in
contrast, with the industry-standard open-fork design, “it’s
almost impossible to . . . fasten the quick release in there
with it at an angle or onto the tips. You have to get over the
tips in order to fasten it.” J.A. 211. Thus, the risk of
mistakenly believing that the hub is properly installed is much
greater on the Mongoose.
Finally, Green opined that the bicycle’s warnings and
instructions regarding the quick release were inadequate because
they were contained only in the owner’s manual. In Green’s
experience, most bicycle owners do not read their owner’s
manuals, and he has found that quick-release warnings are
effective only when a warning label is placed on the quick-
release itself or warnings are actually provided to the consumer
at the point of sale.
Eskridge also argued in his response memorandum that
Green’s acknowledgement that the quick release is one of the
world’s best clamping systems if used properly did not doom his
7
design-defect theories because it was reasonably foreseeable
that the quick release would not in fact be used properly. He
further contended that he was not required to prove
noncompliance with government or industry standards to prove
defectiveness under either a failure-to-warn or a design theory.
And he argued that he had created a jury issue regarding his
entitlement to punitive damages because, prior to the
manufacture of the bicycle, Defendants were aware of the
potential for mis-installation of quick-release hubs and the
associated dangers to riders; they were aware of customer
complaints of quick-release wheels separating from bicycles and
causing accidents; they conducted no technical quality assurance
on the bicycle; and they made no effort to ensure that their
warnings and instructions regarding quick-release hubs were
actually reaching owners and were effectively conveying
necessary instructions and warnings.
Defendants then filed a reply generally reiterating the
arguments they presented in their initial memorandum. In a
footnote, however, they also added that while Green “may be an
expert on bicycles, there has been nothing offered to suggest
that [he] is an expert in labeling or in the retail industry.”
J.A. 324 n.2 (citing a case in which Green was held unqualified
to offer an expert opinion “on the standards or customs of the
8
retail industry because he has not indicated any background in
that area” (internal quotation marks omitted)).
The parties then argued the summary judgment motion before
the district court. During that argument, Defendants did not
challenge the admissibility of any expert testimony that Green
would provide. Following argument, the court took the motion
under advisement.
While the summary judgment motion was still pending,
Defendants moved in limine to preclude Green from testifying:
(1) concerning deficiencies in the owner’s manual; (2) that most
bicyclists do not read owner’s manuals; (3) that the labeling on
the bicycle was inadequate; (4) or about retail industry
standards. The motion was based on contentions that Green had
not criticized the substance of the warnings contained in the
owner’s manual, that he was not an expert in labeling or the
retail industry, and that Eskridge had not forecasted any
admissible testimony on the identified issues. Regarding the
lack of admissible testimony, Defendants specifically asserted
that Green’s testimony in these areas was neither reliable nor
relevant, and they argued that it was not based on sufficient
data since Green admitted he had “never studied the issue of
people reading their owner’s manuals.” J.A. 365.
Eskridge then filed a response discussing Green’s
qualifications to testify regarding warnings, labels, owner’s
9
manuals, and retail industry standards, which included the
following facts. Green is a professional engineer with more
than 30 years experience, and he has worked on more than 500
cases involving quick-release hub bicycle accidents. His book,
Bicycle Accident Reconstruction for the Forensic Engineer,
features a chapter on quick-release hubs and their role in
accidents, and he has published many articles on that subject.
Creating appropriate warnings and labels for a particular
design, so that they accurately convey the necessary information
to the product user, was an integral part of his engineering
education. Since 1976, Green has “evaluated and made
recommendations regarding user and training manuals for all
major bicycle manufacturers.” J.A. 385. And, he helped develop
a label to be placed on the flange of one manufacturer’s quick-
release hubs to warn users of the potentially catastrophic
results of misusing a quick-release hub. Green also has
extensive experience creating manuals in other industries.
Finally, he has been retained by several retailers, including
Wal-Mart, Lowe’s, Performance Bikes, and Brooklyn Bikes, to
revise and implement appropriate retail industry standards.
Eskridge also argued in his response, as is relevant here,
that Green’s view that most bicycle users do not read their
owner’s manuals and that labels on the bicycle itself or point-
10
of-sale warnings were necessary was based on his decades of
experience in the bicycle industry.
Two weeks later, the district court granted the Defendant’s
motion for summary judgment. See Eskridge v. Pacific Cycle,
Inc., No. 2:11-cv-00615, 2013 WL 596536 (S.D. W. Va. Feb. 15,
2013). The court ruled that Eskridge’s three theories that the
Mongoose was defective were all essentially failure-to-warn
theories because they all asserted unreasonable exposure to the
danger that the user would misuse the product (by installing the
quick-release hub incorrectly). See id. at *3-4. And the court
added:
Eskridge has simply provided no admissible evidence
that the warnings were inadequate. Green merely
offered his personal opinion that no one should ever
rely upon an owner’s manual to give warnings or
instructions. This opinion is inadmissible for two
reasons. First, Green does not base this opinion on
“sufficient facts or data” required for expert
opinions to be admissible. FED.R.EVID. 702. Second,
while Green may be an expert on bicycle engineering
and design, there is no evidence that he is qualified
to offer an expert opinion on the standards of the
retail industry.
Id. at *4 (citation omitted).
II.
Eskridge first argues that the district court erred in
granting summary judgment against him on his strict liability,
breach of warranty, and negligence claims, all of which asserted
11
that Eskridge’s injuries were caused by the Mongoose’s
defectiveness. We agree.
This court reviews de novo a district court’s order
granting summary judgment, applying the same standards as the
district court. See Providence Square Assocs., L.L.C. v.
G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary
judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “Because we are sitting in diversity, our role is to
apply the governing state law, or, if necessary, predict how the
state’s highest court would rule on an unsettled issue.” Horace
Mann Ins. Co. v. General Star Nat’l Ins. Co., 514 F.3d 327, 329
(4th Cir. 2008).
Under West Virginia law, a product may be defective in
“three broad, and not necessarily mutually exclusive,
categories: design defectiveness; structural defectiveness; and
use defectiveness arising out of the lack of, or the inadequacy
of, warnings, instructions and labels.” 2 Morningstar v. Black &
2
Under West Virginia law, a product distributor is held to
the same standards as the product’s manufacturer. See Dunn v.
Kanawha Cty. Bd. of Educ., 459 S.E.2d 151, 157 (W. Va. 1995);
Morningstar v. Black & Decker Manuf. Co., 253 S.E.2d 666, 683
n.22 (W. Va. 1979). Thus, these issues bear equally on both
Defendants’ entitlement to summary judgment.
12
Decker Manuf. Co., 253 S.E.2d 666, 682 (W. Va. 1979). Design
defectiveness focuses “on the physical condition of the product
which renders it unsafe when the product is used in a reasonably
intended manner,” while use defectiveness focuses “not so much
on a flawed physical condition of the product, as on its
unsafeness arising out of the failure to adequately label,
instruct or warn.” Id. In this context,
[t]he term ‘unsafe’ imparts a standard that the
product is to be tested by what the reasonably prudent
manufacturer would accomplish in regard to the safety
of the product, having in mind the general state of
the art of the manufacturing process, including
design, labels and warnings, as it relates to economic
costs, at the time the product was made.
Id. at 682-83.
At bottom, Eskridge alleges that the Mongoose, as it was
designed, with the warnings that were included in the manual,
unreasonably exposed the consumer to the danger that the quick-
release would be fastened incorrectly and that the hub would
separate from the fork, causing a crash. He advances three
mutually exclusive theories as to why the Mongoose was
defective, the first two of which he contends are design-defect
theories and the third of which he contends is a use-defect
theory. First, he claims that designing the bicycle with an
open-fork system rather than a closed-fork system created a risk
that a reasonable consumer – even one trying to follow adequate
instructions – would install the quick-release hub incorrectly.
13
Second, he claims that even if open-fork systems generally are
not unreasonably unsafe, the Mongoose’s unusual design, which
significantly increases the chance that a consumer will
improperly install the quick-release hub, was unreasonably
unsafe. And, third, he maintains that even if the bicycle could
have been made reasonably safe had a warning been placed on the
bicycle or given to the consumer at the point of sale, it was
certainly not reasonably safe with the warning being contained
only in the owner’s manual.
In defending the grant of summary judgment, Defendants
argue that if the Mongoose is reasonably safe when used
properly, then it follows that it was not defectively designed.
Defendants contend that since Eskridge’s expert concedes that
the bicycle is safe when used properly, i.e., when the quick-
release hub is correctly installed, 3 then all of Eskridge’s
theories concerning the dangers of improper use are necessarily
use-defect theories. Thus, Defendants continue, Eskridge can
prove a defect in the Mongoose only by showing that the
Mongoose’s warnings or instructions concerning the quick-release
hub were inadequate. And, Defendants argue that the district
3
Green testified that open-fork quick-releases are “one of
the best clamping mechanisms in the world if they’re used
properly.” J.A. 220. The context of this testimony
demonstrates that “if they’re used properly” refers to whether
the hubs are installed properly.
14
court correctly ruled, as a matter of law, that Eskridge could
not prove the inadequacy of the Mongoose’s warnings and
instructions.
Eskridge rejects Defendants’ characterization of his
liability theories, however, and counters that the bicycle is
designed defectively because its design creates an unreasonable
risk that even reasonable people attempting to follow well-
crafted instructions will misuse the bicycle. He alternatively
takes issue with the district court’s conclusion that he failed
to forecast admissible evidence that the Mongoose’s warnings and
instructions were inadequate. We agree with Eskridge on both
points and will address them seriatim.
A. Design Defect
Although the district court characterized all three of
Eskridge’s defect theories as alleging use defectiveness,
Eskridge’s first two theories do not allege a “failure to
adequately label, instruct or warn.” Morningstar, 253 S.E.2d at
682. Rather, they assert that the Mongoose’s design creates an
unreasonable danger that no warning could adequately eliminate.
The fact that Eskridge alternatively challenges the adequacy of
the Mongoose’s warnings does not somehow negate the fact that
his primary challenges are to the bicycle’s design.
Defendants maintain that the safety of a particular design
concerns only whether it is safe for its “proper” use. Thus,
15
they argue that it makes no sense to claim that a product is
defectively designed because the design creates an unreasonable
risk of improper use. We do not believe the Supreme Court of
Appeals of West Virginia would agree, however.
In determining whether a product is reasonably safe for its
intended use, “[t]he question of what is an intended use of a
product carries with it the concept of all those uses a
reasonably prudent person might make of the product, having in
mind its characteristics, warnings and labels.” Id. at 683
(emphasis added). Thus, “the seller is not liable when the
product is . . . used in some unusual and unforeseeable way, as
when a wall decorating compound is stirred with the finger, or
nail polish is set on fire, or an obstinate lady insists on
wearing shoes two sizes too small.” Id. (emphasis added); see
also Landis v. Hearthmark, LLC, 750 S.E.2d 280, 291-93 (W. Va.
2013). These statements make clear that sellers are only
entitled to have their users respond reasonably to the warnings
and instructions; they are not entitled to anything more. In
light of Green’s testimony concerning the difficulty of
installing the hub correctly even with perfect instructions, a
reasonable jury could find that even a “reasonably prudent
person” might fasten the Mongoose’s release incorrectly and that
such a mistake was a wholly “foreseeable” outcome. Thus, a
reasonable jury could well accept Green’s testimony that the
16
Mongoose’s failure even to conform to the industry-standard
open-fork design significantly increased the danger of incorrect
installation and that the bicycle was defectively designed for
that reason.
We note that this result is in line with section 2(b) of
the Restatement (Third) of Torts – Products Liability (1998),
which provides that “[a] product . . . is defective in design
when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the adoption of a reasonable
alternative design . . ., and the omission of the alternative
design renders the product not reasonably safe.” 4 Comment l to
section 2 provides that “[i]n general, when a safer design can
reasonably be implemented and risks can reasonably be designed
out of a product, adoption of the safer design is required over
a warning that leaves a significant residuum of such risks.”
Indeed, Illustration 14 in that section of the Restatement is
quite pertinent to the facts before us here. That illustration
discusses the hypothetical example of a garbage truck’s
compaction chamber that warns in large letters on its outside
4
We observe that the Supreme Court of Appeals of West
Virginia has cited the Restatement (Third) of Torts – Products
Liability, for different propositions on other occasions. See
Bennett v. Asco Servs., Inc., 621 S.E.2d 710, 717-18 (W. Va.
2005) (per curiam); Strahin v. Cleavenger, 603 S.E.2d 197, 210
(W. Va. 2004).
17
panels “DANGER—DO NOT INSERT ANY OBJECT WHILE COMPACTION CHAMBER
IS WORKING—KEEP HANDS AND FEET AWAY.” The illustration notes
that “[t]he fact that adequate warning was given does not
preclude [a worker who falls into the machine] from seeking to
establish” that the compactor was defectively designed by virtue
of the fact that there was no guard to prevent such an accident.
See also Sturm, Ruger & Co. v. Day, 594 P.2d 38, 44 (Alaska
1979) (“Where the most stringent warning does not protect the
public, the defect itself must be eliminated if the manufacturer
is to avoid liability.”), modified, 615 P.2d 621 (Alaska 1980),
overruled on other grounds by Dura Corp. v. Harned, 703 P.2d
396, 405 n.5 (Alaska 1985); Uloth v. City Tank Corp., 384 N.E.2d
1188, 1192 (Mass. 1978) (“Whether or not adequate warnings are
given is a factor to be considered on the issue of negligence,
but warnings cannot absolve the manufacturer or designer of all
responsibility for the safety of the product.”).
Similarly here, we conclude that the Supreme Court of
Appeals of West Virginia would hold that despite the fact that
users can be and were instructed regarding how to use the quick-
release hub, that does not protect the seller, as a matter of
law, from liability for failing to adopt a design that would
have provided significantly better protection than any warning
could. See David G. Owen, Warnings Don’t Trump Design: The
Rise and Fall of § 402A Comment j, 153 Products Liability
18
Advisory 1 (Nov. 2001); Howard Latin, “Good” Warnings, Bad
Products, and Cognitive Limitations, 41 U.C.L.A. L. Rev. 1193,
1295 (June 1994) (“Good product warnings may be useful, indeed
necessary, in many accident-prevention settings but their value
is inherently limited and they consequently should not be
treated as legally acceptable alternatives to safer product
designs and marketing strategies.”). Given Green’s testimony
that simply utilizing the industry-standard quick-release design
would have significantly reduced the danger of misinstallation –
with no apparent cost in utility – we conclude that a reasonable
jury could find that the Mongoose was defectively designed. As
the lack of proof of defect was the only basis the Defendants
assert in support of their entitlement to summary judgment on
the issue of liability, we reverse the grant of summary judgment
on Eskridge’s strict liability, breach of warranty, and
negligence causes of action.
B. Use Defect
We also conclude that the district court erred in ruling
that Eskridge failed to at least create a genuine factual issue
regarding whether the Mongoose contained a use defect, i.e.,
whether the Defendants “fail[ed] to adequately label, instruct
or warn.” Morningstar, 253 S.E.2d at 682.
Under Rule 702 of the Federal Rules of Evidence:
19
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. We review a district court’s evidentiary
rulings, including the admissibility of expert testimony, for
abuse of discretion. See General Elec. Co. v. Joiner, 522 U.S.
136, 141-43 (1997).
Whether a product is defective for failure to warn “is to
be tested by what the reasonably prudent manufacturer would
accomplish in regard to the safety of the product, having in
mind the general state of the art of the manufacturing process,
including design, labels and warnings, as it relates to the
economic costs, at the time the product was made.” Morningstar,
253 S.E.2d at 682–83. The adequacy of the method chosen by the
manufacturer to warn the user of a particular danger is
generally a question for the jury. See Ilosky v. Michelin Tire
Corp., 307 S.E.2d 603, 611 (W. Va. 1983).
20
Green testified that the Mongoose was defective for failing
to adequately warn users concerning the quick-release system
because the warnings appeared only in the owner’s manual and, in
Green’s experience, users did not read such warnings when they
appeared only in manuals. Regarding Eskridge’s claim that the
Mongoose’s warnings were defective, the district court ruled:
Eskridge has simply provided no admissible evidence
that the warnings were inadequate. Green merely
offered his personal opinion that no one should ever
rely upon an owner’s manual to give warnings or
instructions. This opinion is inadmissible for two
reasons. First, Green does not base this opinion on
“sufficient facts or data” required for expert
opinions to be admissible. FED.R.EVID. 702. Second,
while Green may be an expert on bicycle engineering
and design, there is no evidence that he is qualified
to offer an expert opinion on the standards of the
retail industry.
Eskridge, 2013 WL 596536, at *4 (citation omitted).
As to the district court’s second point, we note that the
Defendants do not even attempt to defend the conclusion that
Green was unqualified to testify as an expert as to the
warnings. See Appellees’ brief at 16 (“The court did not rule
that Mr. Green is unqualified to testify as an expert as to
warnings, rather, the court held that Eskridge ‘has simply
provided no admissible evidence that the warnings were
inadequate.”). A witness may be qualified as an expert “by
knowledge, skill, experience, training, or education.” Fed. R.
Evid. 702. While Green needed only one of those, see Garrett v.
21
Desa Indus., Inc., 705 F.2d 721, 724 (4th Cir. 1983), the record
demonstrated that he had them all. See supra, at 7-8. We
therefore conclude that to the extent the district court ruled
that Green was not qualified to offer an expert opinion
regarding the adequacy of the warning here, the court abused its
discretion.
We also can find no foundation for the district court’s
conclusion that Green’s opinion is not based on sufficient facts
or data. Green testified to extensively studying the issue of
improper installation of quick-release hubs. In Green’s
experience, he found that bicycle owners do not generally read
their manuals and that quick-release warnings are effective only
when a warning label is placed on the quick-release itself or
the warnings are actually provided to the consumer at the point
of sale. Green’s involvement with hundreds of cases of
accidents involving quick-release systems and his decades of
experience in the industry in general certainly provided him
with a strong foundation for testifying regarding those facts.
See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999)
(“[N]o one denies that an expert might draw a conclusion from a
set of observations based on extensive and specialized
experience.”).
Defendants contend that Green’s own testimony shows that he
in fact has not studied the question of whether people read
22
their bicycle manuals. They particularly note that when Green
testified that most bicycle owners do not read their manuals and
when he was asked whether that was “because riding a bicycle is
kind of intuitive,” he answered, “Well, that’s probably the
reason, although I’ve never studied it.” J.A. 246-47.
Defendants construe this testimony as meaning that Green had
never studied whether people read their manuals. However, when
Green’s testimony is viewed in its entirety, it is plain he was
stating that he never studied why they do not read their
manuals.
Defendants also argue that the district court correctly
determined that Green’s testimony concerning the inadequacy of
the warnings was inadmissible because it was “nothing more than
his personal belief, rather than the professional opinion of an
expert.” Appellees’ brief at 19. Green’s years of experience
as an engineer were well established, however, and he testified
that all of the opinions that he provided in Green’s reports and
testimony were “to a reasonable degree of engineering
certainty.” 5 J.A. 256. That his opinion was a personal opinion
5
To the extent that Defendants are suggesting that Green’s
personal conclusions as a professional engineer are not
admissible because a plaintiff must demonstrate a deviation from
industry standards and customs to prove defectiveness, they are
simply incorrect. See Jones v. Patterson Contracting, Inc., 524
S.E.2d 915, 920-22 (W. Va. 1999) (per curiam).
23
does not somehow mean it was not a professional one. For all of
these reasons, we can only conclude that the district court
abused its discretion in ruling that Green’s testimony
concerning the inadequacy of the method Defendants employed in
communicating their warnings would be inadmissible.
Finally, Defendants suggest that even if Green’s testimony
concerning the inadequacy of the warnings is admissible, they
were entitled to have their instructions successfully followed,
no matter how difficult it was to do so. For this position,
Defendants rely on the statement in Morningstar that “‘[t]he
seller is entitled to have his due warnings and instructions
followed; and when they are disregarded, and injury results, he
is not liable.’” 253 S.E.2d at 683 (quoting W. Prosser, The Law
of Torts, at 668-69 (4th ed. 1971)); see Landis, 750 S.E.2d at
292. However, whether the Mongoose’s warnings and instructions
were “due warnings and instructions” depends on the adequacy of
the method Defendants chose to communicate them to the user,
which Green’s testimony called into question. In any event, as
we discussed regarding Eskridge’s design-defect theories,
Morningstar does not suggest anything more than that users are
required to take notice of the warnings and instructions and act
reasonably with them in mind. See Morningstar, 253 S.E.2d at
683 (“The question of what is an intended use of a product
carries with it the concept of all those uses a reasonably
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prudent person might make of the product, having in mind its
characteristics, warnings and labels.” (emphasis added)).
While Morningstar stated that a seller is not liable when his
warnings or instructions “are disregarded,” id., it does not
suggest that sellers are entitled to have users successfully
follow instructions no matter how difficult the task.
In sum, in light of the admissibility of Green’s testimony
concerning the inadequacy of the Mongoose’s warnings, we
conclude that Eskridge created a genuine factual issue
concerning whether the Mongoose contained a use defect.
III.
Eskridge also argues the district court erred in granting
summary judgment on his claim for punitive damages. On this
point, we disagree.
To prove entitlement to punitive damages, a plaintiff bears
the burden of showing that the defendant acted in a manner that
entitles him to such damages. See Peters v. Rivers Edge Mining,
Inc., 680 S.E.2d 791, 821 (W. Va. 2009). “[T]he wrongful act
must have been done maliciously, wantonly, mischievously, or
with criminal indifference to civil obligations.” Id. (internal
quotation marks omitted). In products liability cases, the
plaintiff may justify a punitive damages award by showing that
the manufacturer, having actual or constructive knowledge of the
25
product defect, continued to manufacture and distribute it. See
Davis v. Celotex Corp., 420 S.E.2d 557, 559-61 (W. Va. 1992).
Eskridge has not forecasted evidence that could satisfy
that standard here. Although the Mongoose featured an open-fork
system, the record demonstrated that such a release had the
benefit of allowing the user to remove the front wheel quickly
and without tools. While Green testified that that benefit was
not significant to casual riders, the popularity of the open-
fork system on non-racing bicycles indicates otherwise.
Especially considering that open-fork systems were so commonly
employed in the industry, there was no reason to infer that the
Defendants had actual or constructive knowledge that bicycles
with such systems were inherently defective. Additionally,
although Green opined that the Mongoose’s particular open-fork
system was defectively designed, such that it was significantly
more dangerous than typical open-fork systems, there was no
evidence that the Defendants had any actual or constructive
knowledge of this difference. And finally, while Green
testified that warning the consumer about the quick-release only
in the owner’s manual was not adequate, he conceded it was the
manner in which most bicycle manufacturers and distributors
conveyed that information. Although Green testified that some
manufacturers and distributors took the more extensive measures
that Green recommended, Eskridge presented no evidence that
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Defendants had actual or constructive knowledge that their
warnings were not sufficient. See also Ilosky, 307 S.E.2d at
619 (holding that trial court correctly struck punitive damages
claim on failure-to-warn theory when defendant had taken steps
to warn public of the danger in question and the only issue was
whether these steps were adequate). We therefore affirm the
grant of summary judgment concerning Eskridge’s punitive damages
claim.
IV.
For the foregoing reasons, we reverse the grant of summary
judgment on the issue of liability but affirm on Eskridge’s
claim for punitive damages. We therefore remand to the district
court for trial.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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